Expanded version of the paper of the same title that appears in WILLIAM BLACKSTONE (ed.), Philosophy and Environmental CrisisAthens, Georgia: University of Georgia Press, 1974

Acrobat version

To have a
right is to have a claim[1]to something and against someone the recognition of
which is called for by legal (or other institutional) rules, or in
the case of moral rights, by the principles of an enlightened
conscience. In the familiar cases of rights, the claimant is a
competent adult human being, and the claimee is an office-holder
in an institution or else a private individual, in either case,
another competent adult human being. Normal adult human beings,
then, are obviously the sorts of beings of whom rights can
meaningfully be predicated. Everyone would agree to that, even
extreme misanthropes who deny that anyone in fact has rights. On
the other hand, it is absurd to say that rocks can have rights,
not because rocks are morally inferior things unworthy of rights
(that statement makes no sense either), but because rocks belong
to a category of entities of whom rights cannot be meaningfully
predicated. That is not to say that there are no circumstances in
which we ought to treat rocks carefully, but only that the rocks
themselves cannot claim good treatment from us. In between the
clear cases of rocks and normal human beings, however, is a
spectrum of less obvious cases, including some bewildering
borderline ones. Is it meaningful or conceptually possible to
ascribe rights to our dead ancestors? to individual animals? to
whole species of animals? to plants? to idiots and madmen? to
fetuses? to generations yet unborn? Until we know how to settle
these puzzling cases, we cannot claim fully to grasp the concept
of a right, or to know the shape of its logical boundaries.

One way to
approach these riddles is to turn one's attention first to the
most familiar and unproblematic instances of rights, note their
most salient characteristics, and then compare the borderline
cases with them, measuring as closely as possible the points of
similarity and difference. In the end, the way we classify the
borderline cases may depend on whether we are more impressed with
the similarities or the differences between them and the cases in
which we have the most confidence.

It will be
useful to consider the problem of individual animals first,
because their case is the one that has already been debated with
the most thoroughness by philosophers so that the dialectic of
claim and rejoinder has now unfolded to the point where disputants
can get to the end game quickly and isolate the crucial point at
issue. When we understand precisely what z's at issue in the
debate over animal rights, I think we will have the key to the
solution of all the other riddles about rights.

Almost all
modern writers agree that we ought to be kind to animals, but that
is quite another thing from holding that animals can claim kind
treatment from us as their due. Statutes making cruelty to animals
a crime are now very common, and these, of course, impose legal
duties on people not to mistreat animals; but that still leaves
open the question whether the animals as beneficiaries of those
duties, possess rights correlative to them. We may very well have
duties regarding animals that are not at the same time
duties to animals, just as we may have duties regarding
rocks, or buildings, or lawns, that are not duties to the
rocks, buildings, or lawns. Some legal writers have taken the
still more extreme position that animals themselves are not even
the intended direct beneficiaries of statutes prohibiting cruelty
to animals. During the Nineteenth Century, for example, it was
commonly said that such statutes were designed to protect human
beings by preventing the growth of cruel habits that could later
threaten human beings with harm too. Professor Louis B. Schwartz
finds the rationale of the cruelty-to-animals prohibition in its
protection of animal lovers from affronts to their sensibilities.
"It is not the mistreated dog who is the ultimate object of
concern, . . ." he writes. "Our concern is for the feelings of
other human beings, a large proportion of whom, although
accustomed to the slaughter of animals for food, readily identify
themselves with a tortured dog or horse and respond with great
sensitivity to its sufferings."[2]
This seems to me to be factitious. How much more natural it is to
say with John Chipman Gray that the true purpose of
cruelty-to-animals statutes is "to preserve the dumb brutes from
suffering."[3]
The very people whose sensibilities are invoked in the alternative
explanation, a group that no doubt now includes most of us, are
precisely those who would insist that the protection belongs
primarily to the animals themselves, not merely to their own
tender feelings. Indeed, it would be difficult even to account for
the existence of such feelings in the absence of a belief that the
animals deserve the protection in their own right and for their
own sakes.

Even if we
allow, as I think we must, that animals are the directly intended
beneficiaries of legislation forbidding cruelty to animals, it
does not follow directly that animals have legal rights; and Gray
himself, for one,[4]
refused to draw this further inference. Animals cannot have
rights, he thought, for the same reason they cannot have duties,
namely, that they are not genuine "moral agents." Now, it is
relatively easy to see why animals cannot have duties, and this
matter is largely beyond controversy. Animals cannot be "reasoned
with" or instructed in their responsibilities; they are inflexible
and unadaptable to future contingencies; they are incapable of
controlling instinctive impulses. Hence, they cannot enter into
contractual agreements, or make promises; they cannot be trusted;
and they cannot (except within very narrow limits and for purposes
of conditioning) be blamed for what would be called "moral
failures" in a human being. They are therefore incapable of being
moral subjects, of acting rightly or wrongly in the moral senses,
of having, discharging, or breaching duties and obligations.

But what is
there about the intellectual incompetence of animals (which
admittedly disqualifies them for duties) that makes them logically
unsuitable for rights? The most common reply to this question is
that animals are incapable of claiming rights on their own.
They cannot make motion, on their own, to courts to have their
claims recognized or enforced; they cannot initiate, on their own,
any kind of legal proceedings; nor are they capable of even
understanding when their rights are being violated, or
distinguishing harm from wrongful injury, and responding with
indignation and an outraged sense of justice instead of mere anger
or fear.

No one can
deny any of these allegations; but to the claim that they are the
ground of animal disqualification for rights, philosophers on the
other side of this controversy have made convincing rejoinders. It
is simply not true, says W. D. Lamont,[5]
that the ability to understand what a right is and the ability to
set legal machinery in motion by one's own initiative are
necessary for the possession of legal rights. If that were the
case, then neither human idiots nor wee babies would have any
legal rights at all. Yet it is manifest that both of these classes
of intellectual incompetents have legal rights recognized and
easily enforced by the courts. Children and idiots start legal
proceedings, not on their own direct initiative, but rather
through the actions of proxies or attorneys who are empowered to
speak in their names. If there is no conceptual absurdity in this
situation, why should there be in the case where a proxy makes a
claim on behalf of an animal? People commonly enough make wills
leaving money to trustees for the care of animals. Is it not
natural to speak of the animal's right to his inheritance in cases
of this kind? If a trustee embezzles money from the animal's
account,[6]
and a proxy speaking in the dumb brute's behalf presses the
animal's claim, can he not be described as asserting the animal's
rights'? More exactly, the animal itself claims its rights
through the vicarious actions of a human proxy speaking in its
name and in its behalf. There appears to be no reason why we
should require the animal to understand what is going on (so the
argument concludes) as a condition for regarding it as a possessor
of rights.

Some writers
protest at this point that the legal relation between a principal
and an agent cannot hold between animals and human beings. Between
humans, the relation of agency can take two very different forms,
depending upon the degree of discretion granted to the agent, and
there is a continuum of combinations between the extremes. On the
one hand, there is the agent who is the mere "mouthpiece" of his
principal. He is a "tool" in much the same sense as is a
typewriter or telephone; he simply transmits the instructions of
his principal. Human beings could hardly be the agents or
representatives of animals in this sense, since the dumb brutes
could no more use human "tools" than mechanical ones. On the other
hand, an agent may be some sort of expert hired to exercise his
professional judgment on behalf of, and in the name of, the
principal. He may be given, within some limited area of expertise,
complete independence to act as he deems best, binding his
principal to all the beneficial or detrimental consequences. This
is the role played by trustees, lawyers, and ghost-writers. This
type of representation requires that the agent have great skill,
but makes little or no demand upon the Principal, who may leave
everything to the judgment of his agent. Hence, there appears, at
first, to be no reason why an animal cannot be a totally Passive
principal in this second kind of agency relationship.

There are,
however, still some important disanalogies. In the typical
instance of agency-representation, even of the second, highly
discretionary, kind, the agent is hired by a principal who
enters into an agreement or contract with him; the
principal tells his agent that within certain carefully specified
boundaries "You may speak for me," subject always to the
principal's approval, his right to give new directions, or
to cancel the whole arrangement. No dog or cat could
possibly do any of those things. Moreover, if it is the assigned
task of the agent to defend the principal's rights, the principal
may often decide to release his claimee, or to waive
his own rights, and instruct his agent accordingly. Again,
no mute cow or horse can do that. But although the possibility of
hiring, agreeing, contracting, approving, directing, canceling,
releasing, waiving, and instructing is present in the typical (all
human) case of agency representation, there appears to be no
reason of a logical or conceptual kind why that must be so,
and indeed there are some special examples involving human
principals where it is not in fact so. I have in mind, for
example, legal rules that require that a defendant be represented
at his trial by an attorney, and impose a state-appointed attorney
upon reluctant defendants, or upon those tried in absentia,
whether they like it or not. Moreover, small children and mentally
deficient and deranged adults are commonly represented by trustees
and attorneys even though they are incapable of granting their own
consent to the representation, or of entering into contracts, of
giving directions, or waiving their rights. It may be that it is
unwise to permit agents to represent principals without the
latters' knowledge or consent. If so, then no one should ever be
permitted to speak for an animal, at least in a legally binding
way. But that is quite another thing than saying that such
representation is logically incoherent or conceptually
incongruous—the contention that is at issue.

H. J.
McCloskey,[7]
I believe, accepts the argument up to this point; but he presents
a new and different reason for denying that animals can have legal
rights. The ability to make claims, whether directly or through a
representative, he implies, is essential to the possession of
rights. Animals obviously cannot press their claims on their own;
so if they have rights, these rights must be assertable by agents.
Animals, however, cannot be represented, McCloskey contends, and
not for any of the reasons already discussed, but rather because
representation, in the requisite sense, is always of interests;
and animals (he says) are incapable of having interests.

Now, there is
a very important insight expressed in the requirement that a being
have interests if he is to be a logically proper subject of
rights. This can be appreciated if we consider just why it is that
mere things cannot have rights. Consider a very precious "mere
thing"—a beautiful natural wilderness, or a complex and ornamental
artifact, like the Taj Mahal. Such things ought to be cared for,
because they would sink into decay if neglected, depriving some
human beings or perhaps even all human beings, of something
of great value. Certain persons may even have as their own special
job the care and protection of these valuable objects. But we are
not tempted in these cases to speak of "thing-rights" correlative
to custodial duties, because, try as we might, we cannot think of
mere things as possessing interests of their own. Some
people may have a duty to preserve, maintain, or improve the Taj
Mahal; but they can hardly have a duty to help or hurt it, benefit
or aid it, succor or relieve it. Custodians may protect it for the
sake of a nation's pride and art lovers' fancy; but they don't
keep it in good repair for "its own sake," or for "its own true
welfare," or "well-being." A mere thing, however valuable to
others, has no good of its own. The explanation of that fact, I
suspect, is that mere things have no conative life; neither
conscious wishes, desires, and hopes; nor urges and impulses; nor
unconscious drives, aims, goals; nor latent tendencies, directions
of growth, and natural fulfillments. Interests must be compounded
somehow out of conations; hence mere things have no interests.
A fortiori, they have no interests to be protected by legal or
moral rules. And without interests a creature can have no "good"
of its own, the achievement of which can be its due.

So far
McCloskey (as I have reconstructed his argument) is on solid
ground; but one can quarrel with his denial that any animals but
humans have interests. I should think that the trustee of funds
willed to a dog or cat is more than a mere custodian of the animal
he protects. Rather his job is to look out for the interests of
the animal and make sure no one denies it its due. The animal
itself is the beneficiary of his dutiful services. Many of the
higher animals at least have appetites, conative urges, and
rudimentary purposes, the integrated satisfaction of which
constitutes their welfare or good. We can, of course, with
consistency treat animals as mere pests and deny that they have
any rights; and for most animals, especially those of the lower
orders, we have little choice but to do so. But it seems clear to
me, nevertheless, that in general, animals are among the
sorts of beings of whom rights can meaningfully be predicated and
denied.

Now, if a
person agrees with the conclusion of the argument thus far, that
animals are the sorts of beings that can have rights, and
further, if he accepts the moral judgment that we ought to be kind
to animals, only one further premise is needed to yield the
conclusion that some animals do in fact have rights. We must now
ask ourselves for whose sake ought we to treat (some) animals with
consideration and humaneness? If we conceive our duty to be one of
obedience to authority, or to one's own conscience merely, or one
of consideration for tender human sensibilities only, then we
might still deny that animals have rights, even though we admit
that they are the kinds of beings that can have rights. But
if we hold not only that we ought to treat animals humanely but
also that we should do so for the animal's own sake, that
such treatment is something we owe animals as their due,
something that can be claimed for them, something the
withholding of which would be an injustice and a wrong,
and not merely a cause of damage, then it follows that we do
ascribe rights to animals. I suspect that the moral judgments most
of us make about animals do pass these phenomenological tests, so
that most of us do believe that animals have rights, but are
reluctant to say so because of the conceptual confusions about the
notion of a right that I have attempted to dispel above.

[1]
I shall leave the concept of a claim unanalysed here, but for
a detailed discussion, see my "The Nature and Value of
Rights," Journal of Value Inquiry, Winter 1971.